Despite the fact that the “War on Terror” was launched over eight years ago to pursue those responsible for the 9/11 attacks, and despite the fact that Attorney General Eric Holder noted, in a statement announcing the trial, that the opportunity for the relatives of the 9/11 victims “to see the alleged plotters of those attacks held accountable in court” had been “too long delayed,” Republican critics immediately leapt on the announcement, with Senate minority leader Mitch McConnell describing it as “a step backwards for the security of our country” that “puts Americans unnecessarily at risk.”

McConnell, former Vice President Dick Cheney and others who have spent most of the year shamelessly playing the fear card about bringing Guantánamo prisoners to the US mainland to face trials ought to be ashamed of themselves, as there is no reason to delay justice any longer in the case of these men, and every reason to decry the fact that, instead of being prosecuted shortly after their capture, they were diverted into a lawless program of incommunicado detention and torture that threatened to derail the possibility that they could be brought to justice at all.

In the case of Khalid Sheikh Mohammed, for example, the decision to prosecute him in a federal court comes over six years late. Despite having confessed to his involvement in the 9/11 attacks to an al-Jazeera reporter before his capture by US forces in March 2003, he was held for three and a half years in secret prisons run by the CIA, where he was subjected to torture (including waterboarding, a form of controlled drowning), in a violent and misguided attempt to secure “actionable intelligence.” Instead of achieving its desired result, this vile program appears to have prevented no actual planned terrorist attack, and led only to the generation of countless false leads, which wasted the resources of the intelligence services, and also, of course, led to the creation of a global network of secret prisons in which, distressingly, torture only begat more torture.

Khalid Sheikh Mohammed is the most notorious of the five men, but the others — Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash — were also tortured in secret CIA prisons for up to four years, and, as with KSM, the decision to try them in federal courts is most noteworthy for finally bringing to an end the scandalous flight from justice and the law that led to their secret detention and torture.

The problems with the Military Commissions

However dismal and compromised this story is, it at least has more to recommend it than the simultaneous announcement that five other prisoners will not face federal court trials, but will, instead, face trials by Military Commission. This alternative judicial system — for “terror suspects” only — was set up by former Vice President Dick Cheney in November 2001, and struggled to establish anything resembling legitimacy throughout its seven-year existence, securing only three dubious verdicts, and attracting ferocious opposition from its own government-appointed military defense attorneys, and also from a number of prosecutors who resigned, including Lt. Col. Darrel Vandeveld and the former chief prosecutor, Col. Morris Davis, who all recognized that it was rigged to disguise the use of torture and to secure convictions.

Amended by the Obama administration and by Congress, the Commissions still lack legitimacy, with gray areas involving the admissibility of coerced confessions and hearsay evidence, and a widespread conviction amongst legal experts that federal courts have a proven track record in dealing with terrorism cases that the Commissions can never hope to emulate.

Moreover, although Eric Holder claimed on Friday that the revised Commission process “will be fair and that convictions obtained will be secure,” he neglected to mention that, this summer, senior administration officials conceded that the proposed charge of material support for terrorism — a longtime mainstay of the Commissions from 2006 onwards, when they were revived by Congress after being ruled illegal by the Supreme Court — may well be subject to successful court appeals. What makes the decision to proceed with the Commissions even more ludicrous is that the government also admits that no such problems exist with prosecuting material support for terrorism in federal courts.

In addition, the very existence of a two-tier judicial system should be enough to set alarm bells ringing, as it suggests — quite correctly, I believe — that the government is hedging its bets when it comes to justice, proceeding with federal court trials when it believes that it will secure successful prosecutions, and reserving the Commissions for other cases in which it fears that it may fail, because the evidence is not only contaminated by the use of torture, but is also weak.

In his announcement about the trials, Eric Holder stated that the “decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July,” adding that the protocol “sets forth a number of factors — including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated — that must be considered.” The process has therefore been presented as being based on clear-cut decisions — whether the alleged offenses took place on the US mainland (federal court trials) or elsewhere (Military Commissions) — but in reality Holder let slip that the decisions would be based on whether or not the government thinks it will secure victory. The key is that phrase, “the manner in which the case was investigated”; in other words, how the supposed evidence was gathered.

I’ve been railing against the proposed revival of the Commissions since May, when President Obama first announced it in a major speech on national security, and I remain as confused and depressed about the proposals as I did back then. Glenn Greenwald has also been implacably opposed to the proposals, and on Friday he succinctly summed up the significance of the government’s failure to hold only federal court trials as follows: “A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials.”

The government has not yet announced how many of the remaining 215 Guantánamo prisoners will be put forward for trials — either in federal court or by Military Commission — but ProPublica reported on Friday that, although “Justice Department officials said the cases of 40 detainees have been referred to government prosecutors for possible prosecution,” another administration official conceded that “it was unlikely that charges would be brought against more than 30.” This figure of a maximum of 40 prisoners is somewhat encouraging, as it corresponds with the numbers quoted in intelligence reports over the years, but the government is not off to an encouraging start, because, beyond the five men put forward for the 9/11 trial, the choice of the five other men put forward for trials by Military Commission — all of whom were previously charged under the Bush administration — is disheartening, to say the least.

The five prisoners put forward for trial by Military Commission

One is Omar Khadr, the Canadian who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002. Khadr should have been treated as a juvenile prisoner, and rehabilitated rather than punished, but he was subjected to appalling brutality, even though, to this day, the evidence suggests that he was not responsible for the crime for which he will be charged — the killing of a US soldier with a grenade — as, at the time, he was face down and unconscious under a pile of rubble. In addition, it remains as doubtful as it always has that there was anything extraordinary about the context of his capture (as part of a group of men engaged in combat in a war zone), and that attempts to imbue it with anything related to terrorism are simply misguided.

Khadr’s case is undoubtedly the most disappointing of the five, but the other four cases are also troubling, firstly because there appears to be no justifiable basis for not pursuing them in federal courts, and, in some cases, because the very basis for prosecution seems to be in doubt.

In the case of Abdul Rahim al-Nashiri, a “high-value detainee” seized in the United Arab Emirates in November 2002, and held in secret CIA prisons for nearly four years, the main problem is that he, along with KSM and Abu Zubaydah, was waterboarded in US custody, and claimed, in his tribunal at Guantánamo in 2007, that he had made false allegations because he was tortured. He said that he made up stories tying him to the bombing of the USS Cole and confessed to involvement in several other plots — the attack on the USS Limburg, other plans to bomb American ships in the Gulf, a plan to hijack a plane and crash it into a ship, and claims that Osama bin Laden had a nuclear bomb — in order to get his captors to stop torturing him. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

Moreover, as his attorney, Nancy Hollander, explained on Friday (as reported on Daily Kos), “his case was first investigated as a criminal case, and the only reason to try him in a military commission is that they do not have the evidence to go to a legitimate court.”

The other three are not even accused of involvement in specific attacks. Ibrahim al-Qosi, a Sudanese prisoner who was charged in the Commissions’ first incarnation in 2004, and again in 2007, was only finally arraigned on November 19, 2008, when the major claim against him — that he was responsible for al-Qaeda’s payroll in Khartoum, before Osama bin Laden and his entourage moved back to Afghanistan in 1996 — was dropped by the government, and all that remained were claims that he worked at an al-Qaeda compound from 1996 to 1998, that he fought “as an al-Qaeda mortar man near Kabul from 1998 to 2001,” and that he sometimes worked as a driver and bodyguard for bin Laden.

At the arraignment, al-Qosi’s civilian lawyer, Lawrence Martin, declared that his client, “far from being a war criminal, was a cook,” adding, “He was not even a cook for bin Laden, but a cook for a compound where bin Laden was sometimes a visitor.” This position is also maintained by his military defense lawyers, including Maj. Todd Pierce, who visited Sudan over the summer to meet al-Qosi’s family, and it seems, therefore, to cast al-Qosi in a similar role to that of Salim Hamdan, a Yemeni who was one of bin Laden’s drivers in Afghanistan. Hamdan received a meager sentence after his trial by Military Commission in August 2008, when the military jury threw out the conspiracy charge against him, accepting that he knew nothing about the workings of al-Qaeda.

Ahmed al-Darbi, a Saudi who was seized on arrival in Azerbaijan in June 2002 and “rendered” to US custody in Afghanistan two months later, is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, but in September, at one of the last pre-trial Military Commission hearings before Friday’s announcement, his civilian lawyer, Ramzi Kassem, urged that all of the 119 statements that al-Darbi made to interrogators should be ruled out, because they were obtained through the use of torture and abuse, including beatings, threats of rape, sensory deprivation, sleep deprivation and sexual humiliation, both at Bagram, where al-Darbi was held for eight months, and at Guantánamo (a full statement by al-Darbi is available here). At the time, the judge in his case, Army Col. James Pohl, reserved judgement on Kassem’s request, but it is clear that these unresolved issues will surface at al-Darbi’s trial, and it is difficult to see how they can easily be brushed aside.

The last man to be put forward to face a trial by Military Commission is Noor Uthman Muhammed, also from Sudan. On May 23, 2008, Muhammed was charged with conspiracy and providing material support for terrorism, based on allegations that he served as the deputy emir of the Khaldan training camp in Afghanistan from 1996 to 2000, when the camp was closed, that he served as an instructor at the camp, and that he delivered a fax machine to Osama bin Laden at a training camp in 1999.

Noticeably, in his tribunal at Guantánamo in 2004, Muhammed did not deny that he was sometimes involved in the administration of the camp, but he insisted that Khaldan was “a place to get training” that had nothing to do with either al-Qaeda or the Taliban. “People come over to that camp, train for about a month to a month and a half, then they go back to their hometown,” he said, adding that what the people did with the training they received was their own business.

Behind the façade

This may appear to have been an evasive explanation on Muhammed’s part, but in fact the whole story of Khaldan is dangerously complicated for the government, not merely because these claims have been aired before, and because it appears that the camp was closed in 2000 because its emir, Ibn al-Shaykh al-Libi, refused to cooperate with bin Laden, but also because both al-Libi and Khaldan’s gatekeeper, Abu Zubaydah, are people that the government want to keep quiet about.

Al-Libi, perhaps the CIA’s most notorious “ghost prisoner,” was rendered to Egypt, where, under torture, he produced a false confession about connections between al-Qaeda and Saddam Hussein that was used to justify the invasion of Iraq in March 2003. Returned to Libya in 2006, after spending over four years in a series of proxy prisons or prisons run by the CIA, he died in mysterious circumstances in May this year. Zubaydah, who is still in Guantánamo, but has not been put forward for a trial, was the first prisoner to be subjected to the torture techniques — including waterboarding — that were developed for use on the “high-value detainees,” and the problem for the government is not that officials have to build a case against him while avoiding all mention of the use of torture, but that his role was massively overstated, and he appears to be too psychologically damaged to be put on trial.

It is, therefore, difficult to see how Noor Uthman Muhammed’s trial by Military Commission can proceed without focusing on the stories of Ibn al-Shaykh al-Libi and Abu Zubaydah, but even if it does prove possible, the very mention of these men points to some dark truths that lie behind Friday’s announcement: that other supposedly “high-value detainees,” in addition to Abu Zubaydah, have not been put forward for trial, that the question of what to do with Zubaydah, a Palestinian, appears to present an insoluble problem, and that the murky world of proxy prisons and CIA prisons, and the torture regime that involved at least 150 prisoners (and maybe many more) is barely hidden behind Eric Holder’s decision to announce the trials of the ten men mentioned above. Even on this limited basis, the pursuit of justice is contaminated, and the question of accountability — deliberately ducked by the Obama administration — seems unlikely to go away.

Perhaps, as some commentators have suggested, the Bush administration will be under the spotlight as much as Khalid Sheikh Mohammed in the forthcoming trials, and it seems probable, therefore, that questions about the Bush administration’s responsibility for torture and abuse will also leak out in the trials by Military Commission, and will remain, like a guilty secret waiting to be revealed, in the cases of many of the other men at Guantánamo whose fates have yet to be decided.

The moral problem with the use of the commissions is laid out beautifully above by Andy.

However… I’m not so sure the Commission’s inherent legal problem– said problem being that the laws of war simply do not incorporate anything like “material support of terrorism” or “conspiracy to commit war crimes,” per se exceed the jurisdiction of any military commissions or tribunals of any kind– isn’t more of a feature than a bug.

Playing this out, any “conviction” obtained would be subject to years and years of appeals… some of which would presumably eventually go the detainees’ way, but the detainees would, of course, remain prisoners pending all such proceedings, providing cover for their detentions. Unless, of course, the commissions handed out relatively short sentences (see Hicks, Hamdan), in which case, the prisoners could simply be repatriated ahead of the general poor schmuck “not ready for prime time commission” players,and the government could duly blame the military lawyers and officers who sat on the commissions, rather than be accountable for any “hard” decisions themselves… and hence… get cover for ending the detentions!

Commissions under this scenario are especially useful for “trying” nobodies that they don’t really care about anyway, other than for propaganda-get-tough-value-for-stupid-people (this is where Omar Khadr, for example, comes in).

Meanwhile, the real bad-ass guys like KSM et al, will likely get the bad-ass life imprisonment and/or capital punishment sentences that the federal courts regularly hand out to lesser miscreants like drug dealers.

In thinking about the whole thing, while it’s without doubt a legal abomination… it may have its political points, even more significant than just trying to “fast-track” convictions of dubious cases, of providing political cover to the Administration to clear its books of some of the “harder” cases.

Thanks, TD. Good analysis of the legal morass versus political expediency. I do wonder, however, how legitimate the Commissions will appear in some of the cases that are more difficult than that of Khadr (who simply shouldn’t be on trial), although I suppose you’re right, in that the Commissions won’t happen for some time, giving the administration some more breathing space to see if it can come up with any other solutions.
My biggest disappointment is with the repeated leaks from the administration about prisoners who are “too dangerous to release,” because their files are apparently full of “evidence” that can’t be used, and wonder why anyone would even mention this when the District Courts are the correct venue for sorting evidence from innuendo. I’s like to see the Justice Department move more quickly on the pending habeas petitions, but again I suppose a waiting game gives them more time to sort out alternative plans of action.

Supplicating for known terrorists..How low can you sink? These bastards are responsible for over 3000 deaths and you think they’re a bunch of innocents.I have NO problem with the American system be it military or civilian.Khadr ,your Toronto poster boy for Al-Queda will FINALLY get his day in court.You should be ecstatic…But,there’s the little problem of evidence which will show him preaching Jihad against the West,assembling IEDs and planting those bombs roadside..all on video.
At Khadr’s preliminary hearing, a F.B.I. agent testified that Khadr admitted to throwing that grenade and that he did it “just like in the movies” And this wasn’t obtained under duress..
It must be heartbreaking to see the actual trials proceed ,that will take away your soapbox!
You can whine about the system and how unfair it is ,but ,no one will take you seriously and will continue to ignore you as they all have in the past….
The Americans have Khadr and they can F***ING WELL KEEP HIM!

[…] have been some notable exceptions. Both Glenn Greenwald and myself (in an article entitled, “The Logic of the 9/11 Trials, The Madness of the Military Commissions”) have written about it, and Lt. Col. David Frakt, who served as the military defense attorney […]

[…] reason, even to face trials. Senior officials successfully fought back against this proposal, and announced last week that ten prisoners, including Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 […]

Great point, t.m., although what flipper also didn’t ask was whether the FBI agent had any doubts whether, even apparently without duress, a 15- or 16-year old, treated abominably from the time of his capture (even while those who abused him kept him alive) might in any case have been tempted to tell his captors what they wanted to hear.

“Noor Uthman Muhammed did not deny that he was sometimes involved in the administration of the camp, but he insisted that Khaldan was “a place to get training” that had nothing to do with either al-Qaeda or the Taliban”

The question must be asked – Who WAS responsible for running, organising & facilitating the training camps at Khalden etc., if not al-Qaeda or the Taliban?

Note from a UK SIAC judgement of October 2003 (referenced here:http://tinyurl.com/dn3xtq ) that details of the _significant_ camps was a matter for closed evidence. The camps were ‘originally set up to train Mujahaddin for fighting against the Soviet Army’ (presumably by factions of the US/Western Security Services/CIA etc.), and were also used to train enlisted Muslims for operations in Chechnya & Bosnia. Again, who co-ordinated these international terrorist operations?

A good question, indeed, and one that perhaps no government in the West wants answered. From my understanding, Ibn al-Shaykh al-Libi was an independent operator, and much of Khaldan’s focus was on Chechnya, but it is of course extremely valid to ask who had funded the camp in its early days, and to examine the Bosnian recruitment angle.

[…] to remain transfixed by the unprincipled right-wing assault on the administration’s decision to bring five prisoners to New York to face a federal court trial for their alleged involvement in the 9/11 attacks, including Khalid […]

[…] the Law: Stories from Guantánamo” (directed by Polly Nash and myself) and also to talk about the latest developments at Guantánamo. This was a wonderful opportunity to showcase the film, and I’m […]

[…] was not confined to a select group of 14 “high-value detainees” — including Zubaydah and Khalid Sheikh Mohammed — who were moved to Guantánamo in September 2006, but also to 80 other prisoners that the OLC […]

[…] Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, five other prisoners — previously charged in the Bush administration’s Military […]

Mr. Worthington. Thank you very much for the work you have done and the information you have provided which I believe will be highly useful when the full story of Guantanamo, the Bush Administration and the War on Terror is finally told however long that may take.

I would like to know what your experience has been with respect to the main stream media.

My impression is that for the most part they have failed miserably, and inexplicably, to get out the truth about detainees. For example, to what extent has your information been relayed by the MSM, what interviews on tv have you done, etc.

The most publicized stories seem to be those involving western citizens, like Omar Khadr. Certainly his story has been widely told in Canada and the result in Canada is interesting. Of those who remain resistant to the truth, many express frustration that his name keeps coming up in media stories and cling to ridiculous arguments. But, millions of Canadians fully recognize the gross injustice involved and the shameful role of both the American and Canadian governments in his case.

[…] lawyer up and reads them their Miranda rights, we won’t be at war. He seems to think if we bring the mastermind of Sept. 11 to New York, give him a lawyer and trial in civilian court, we won’t be at war. He seems to think if he […]

[…] the military commissions (slightly re-jigged by Congress), as a second tier of justice to accompany federal court trials for some of the men accused of terrorism, and announcing that he would also hold others […]

[…] men subjected to “enhanced techniques” are clearly the “high-value detainees” — including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, Abu Zubaydah and twelve others — who were […]

[…] men subjected to “enhanced techniques” are clearly the “high-value detainees” — including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, Abu Zubaydah and twelve others — who were […]

[…] men subjected to “enhanced techniques” are clearly the “high-value detainees” — including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, Abu Zubaydah and twelve others — who were […]

People shouldn’t judge . I love ALI , Well all that i knew about him . I know he was kind @ heart . & i know he loved me . I never met a more honest man , People shouldn’t speak what they dont know . I miss him dearly . I pray His ALLAM be with him & watch over him.

[…] 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November […]

[…] to launch had the administration acted more decisively. When Attorney General Eric Holder announced in November that five men — including Khalid Sheikh Mohammed — would face federal court trials for their […]

[…] difficult to launch had the administration acted more decisively. When Attorney General Eric Holder announced in November that five men — including Khalid Sheikh Mohammed — would face federal court trials for […]

[…] difficult to launch had the administration acted more decisively. When Attorney General Eric Holder announced in November that five men — including Khalid Sheikh Mohammed — would face federal court trials for […]

[…] two-tier justice system for terror suspects at Guantánamo by announcing that five men would face federal court trials for their alleged involvement in the 9/11 attacks, but that five others would face trial by […]

[…] two-tier justice system for terror suspects at Guantánamo by announcing that five men would face federal court trials for their alleged involvement in the 9/11 attacks, but that five others would face trial by […]

[…] detention without charge or trial include five men regarded as particularly significant (including Ramzi bin al-Shibh, one of the alleged 9/11 plotters), and 26 others (regarded as facilitators for […]

[…] Congress chose to ignore even the government’s appeals, and on November 13 last year, Attorney General Eric Holder announced that five men previously put forward for trial by military commission under President Bush — […]

[…] administration might have still contemplated doing — standing up to critics and insisting that, as announced a year ago, the trial of Khalid Sheikh Mohammed and four others accused of involvement in the 9/11 attacks […]

[…] his book, he writes that his response, when asked if he would approve the waterboarding of Khalid Sheikh Mohammed, was, “Damn right!” He added, “Had I not authorized waterboarding on senior al-Qaeda […]

[…] have effectively been suspended, specifically derailing the administration’s stated intention to prosecute Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks in federal court, the administration is preparing to […]

[…] November 2009 that Khalid Sheikh Mohammed and four other “high-value detainees” in Guantánamo would face a federal court trial in New York for their involvement in the 9/11 attacks, those who opposed his plan struck […]

[…] President Obama also neglected to mention that it was he who revived the military commissions, and he who backed down on federal court trials when the administration was criticized for Attorney General Eric Holder’s announcement, in November 2009, that the men accused of involvement in the 9/11 attacks would be tried in New York. […]

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington